FWC: Ruling on Out-of-Hours Work

In Shea Munro v Wilmar Australia, the Fair Work Commission ruled that whilst working out of hours during carers leave was not a valid reason for dismissal, a refusal to follow a lawful and reasonable direction to provide information about the out of hours work justified termination.

Employment Law – Facts

In essence:

Munro was employed by Wilmar Australia, a sugar cane operator, across a range of roles including fort lift operator, engineer’s assistant, general mill worker and roving driver.

Munro also operated his own business offering cane harvesting and slashing, lawn mowing and agricultural equipment repairs.

When he was hired, Munro assured Wilmar that he could safety work for them whilst running his own business, by employing a casual employee to fulfil his duties when he was rostered on at Wilmar.

In August, Munro was granted a week’s paid carer’s leave as his wife had been hospitalised. However, Wilmar discovered that Munro has been working in his own business harvesting cane during that time.

Munro was issued with an Intolerable Breach Notice and a list of conditions to comply with, such as submitting weekly time sheets indicating the time he spend working in his own business.

However, Munro refused to accept Wilmar’s terms, claiming that it was an attempt to make him resign and that he cared for his family in the evenings and had only worked on his business during his free time.

Wilmar argued that Mr Munro had engaged in serious misconduct by undertaking work on his paid leave days and that he had also failed to follow a reasonable direction by refusing to disclose the extent and timing of his activities when working for his business. They claimed they needed this information to manage potential fatigue and safety issues.

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

held that Mr Munro’s claim for carers leave was genuine as he cared for his partner during the evenings, when he was normally rostered on for work

established there was no misconduct on the basis that where other activities “occur outside the worker’s ordinary hours of work, and there is adequate care for the ill or injured family member, this should be of no concern to the worker’s employer”

found that Munro’s refusal to provide the information was a valid reason for dismissal. This was because Wilmar had a duty of care to ensure Munro was not fatigued, and therefore was sought for an “appropriately legitimate purpose”

ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements

ensure that where the termination of an employee’s employment is being considered that the issues surrounding the proposed termination are properly investigated and a procedurally fair process is applied prior to making any final determinationseek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision

raise any employment law questions with an employment lawyer

damages can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)

Employment Law – More Information

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